Articles Posted in Criminal Law

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In 2009, Clardy pled guilty to possessing a firearm as a convicted felon and to possessing over 50 grams of crack cocaine with the intent to distribute it. He signed a “Waiver of Appellate Rights,” stating that Clardy “knowingly waives the right to challenge the sentence imposed in any collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. 2255 and/or 2241, and/or 18 U.S.C. 3582(c).” After ensuring that Clardy understood and had signed the agreement voluntarily, the court accepted his plea and sentenced him to 144 months' imprisonment. The Sentencing Commission later amended the Guidelines to reduce the offense levels for drug crimes. Clardy filed a motion under section 3582(c)(2), which allows a court to reduce a sentence that was based on a Guidelines range that has been lowered. The Seventh Circuit affirmed rejection of his motion. A defendant can waive “any right, even a constitutional right,” in a plea agreement. Clardy signed his agreement knowingly and voluntarily. By its plain terms, Clardy waived his right to file a 3582(c) motion. The specific terms within the agreement, not its general title, control its reach. References to specific statutes more clearly explain an agreement’s scope than do terms like “collateral attack.” View "United States v. Clardy" on Justia Law

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An undercover agent drove a confidential informant to purchase heroin. After Jackson sold the CI a gram of heroin, the CI asked Jackson if he knew where to get a pistol. They negotiated a price. While the CI went to the car for the money, Jackson walked to his residence to get the gun. Days later, Jackson told the CI that he had another gun. The agent drove the CI to meet Jackson. After the CI purchased a second gun. the CI asked whether Jackson wanted another drug customer, indicating the undercover agent. The CI then left the property with the pistol, returning to the car. Jackson subsequently walked to the vehicle and sold the agent heroin. Days later, officers executed a search warrant on the properties involved in these sales. At one, they discovered $3,050 and a spoon with heroin residue. At the other, they encountered Jackson's relative who admitted to flushing marijuana and cocaine base down the toilet when he heard officers entering. No guns were recovered. Jackson pled guilty as a felon in possession of a firearm and two counts of distribution of heroin. The court applied a four-level enhancement (U.S.S.G. 2K2.1(b)(6)(B)) for “us[ing] or possess[ing] a firearm in connection with another felony offense,” imposing a 100-month sentence. Without the enhancement, the range would have been 77-96 months. The Sixth Circuit vacated. Jackson made separate sales, without bringing both a gun and drugs to either or having reason to anticipate that the first sale would beget the second. Jackson did not use or possess either gun in connection with either drug sale. View "United States v. Jackson" on Justia Law

Posted in: Criminal Law

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From 2008-2014, Pain Center of Broward (PCB) issued cheap pain pill prescriptions; 60-65 patients a day arrived from many states. PCB’s owner, Shumrak, had no medical training. Seven of Eastern Kentucky’s largest drug trafficking organizations used PCB as their source for opioid pills. Elliott was PCB's security guard. When Elliott observed DEA agents or police watching the building, he warned patients. Elliot also shuttled prescriptions from the clinic to doctors for signatures. Frial-Carrasco was a doctor and was aware of many “red flag[s]” that PCB was a “pill mill.” Solomon was a PCB physician assistant; although doctor’s signed her prescriptions no doctor supervised her patient examinations. DEA agents raided PCB, arrested Shumrak; escorted clinic employees to an office, stating they were not under arrest and conducted a search, during which the employees were free to leave. Solomon made incriminating statements. An agent then read Miranda warnings to Solomon. A jury found Solomon, Elliot, and Frial-Carrasco guilty of conspiracy, assessed forfeiture of proceeds of $10 million. Applying then-applicable standards, the court credited them with $8 million forfeited by Shumrak and found them jointly and severally liable for the balance. The Sixth Circuit affirmed, holding that venue was proper in the Eastern District of Kentucky although the customers who were known to be taking pills to Kentucky were merely purchasers and no conspirator committed an overt act in Kentucky. A conspirator can be tried at the place where a conspiracy targets its acts. The court remanded for calculation of forfeiture amounts under the Supreme Court’s 2017 "Honeycutt" decision. View "United States v. Elliott" on Justia Law

Posted in: Criminal Law

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FBI Agent Max began his investigation of two similar Michigan jewelry-store robberies—separated by 150 miles—with a chronological list of every phone number that used particular communications towers for any purpose (voice call, text, internet connection, etc.) regardless of provider (e.g., Verizon, AT&T). The “tower dump” evidence was obtained pursuant to the Stored Communications Act, 18 U.S.C. 2703(d). The FBI also had witness statements and surveillance videos from the robberies. The information led to the four defendants, who were convicted of Hobbs Act robbery, 18 U.S.C. 1951(a); use of a firearm in furtherance of the robbery, 924(c)(1)(A); conspiracy to commit robbery, 1951(a); use of a firearm in furtherance of the conspiracy, 924(c)(1)(A) & (C)(i); and being a felon in possession of a firearm, 922(g)(1) and 924(a)(1)(D)(2). The Sixth Circuit affirmed the convictions and sentences, rejecting arguments that a pretrial photo-array identification was unduly suggestive; upholding admission of the cell phone records under the statutory standard of “reasonable grounds to believe the records are material to an ongoing investigation”; upholding admission of expert and lay testimony about the cell-tower-location evidence; and upholding denial of a motion to sever the trials. The court noted the “overwhelming” evidence of guilt. View "United States v. Pembrook" on Justia Law

Posted in: Criminal Law

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A jury convicted Dufresne of three counts of first-degree criminal sexual conduct (CSC) and six counts of third-degree CSC, based upon sexual acts that Dufresne committed against his then-girlfriend, Wiertalla, with whom he shared a son. Wiertalla reported the acts after Dufresne left her and traveled to Florida with their son. Dufresne belonged to the “Creativity Movement,” which was considered by law enforcement to be a white-supremacist group. The trial court sentenced Dufresne to 50-75 years of imprisonment on the first-degree CSC counts and 25-50 years on the third-degree counts. Following a hearing on the effectiveness of trial counsel’s assistance, the Michigan Court of Appeals affirmed rejection of an ineffective assistance claim. After rejection of his state court motion for relief from judgment, Dufresne filed a federal habeas petition, alleging: trial counsel performed ineffectively; the trial court erred by granting a motion to exclude evidence and the prosecutor intimidated crucial witnesses; appellate counsel failed to raise meritorious issues; repeated references to his post-arrest, post-Miranda silence; and repeated references to his ties to the Creativity Movement. The district court denied habeas relief, concluding that Dufresne procedurally defaulted grounds one and two and was not entitled to habeas relief on the merits of grounds three through five. The Sixth Circuit denied a certificate of appealability, calling the evidence of guilt “overwhelming.” View "Dufresne v. Palmer" on Justia Law

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In 2006, Williams pleaded guilty to being a felon in possession of a firearm. He had prior convictions under Ohio law: attempted felonious assault, domestic violence, and assault on a peace officer, which subjected him to a mandatory-minimum sentence of 180 months’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). Williams twice, unsuccessfully filed 28 U.S.C. 2255 petitions to vacate his sentence. In 2015, (Johnson) the Supreme Court found the ACCA's residual clause, section 924(e)(2)(B)(ii), unconstitutional and subsequently held that Johnson had announced a new substantive rule of constitutional law that courts must apply retroactively to cases on collateral review. Williams filed a third 2255 motion, arguing that his prior convictions no longer counted as ACCA predicate offenses. The Sixth Circuit authorized the district court to consider whether Williams’ felonious assault conviction still qualifies as an ACCA violent felony, noting its 2012 holding (Anderson), that committing felonious assault in Ohio necessarily requires the use of physical force and is a predicate offense under the ACCA elements clause. The district court then held, and the Sixth Circuit agreed, that Anderson remains controlling precedent. Section 2255 motions based on Johnson are appropriate where the sentencing court may have relied on the residual clause. When binding precedent establishes that a violent felony used to enhance a sentence under the ACCA qualifies as a predicate offense under a separate ACCA provision, like the elements clause, the Johnson holding is not implicated. The courts found no reason to overrule Anderson. View "Williams v. United States" on Justia Law

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Harper shot his brother and pled guilty in state court to reckless aggravated assault, Tenn. Code 39-13- 102(a)(1)(B). Three years later, Harper was caught selling drugs while possessing a loaded pistol. He pled guilty as a felon in possession of a firearm, 18 U.S.C. 922(g). The court calculated Harper’s Guidelines range to be 46-57 months’ imprisonment. The government argued that Harper’s range should be 84-105 months because Harper’s prior Tennessee conviction was for a felony “crime of violence,” U.S.S.G. 2K2.1(a)(4)(A), 4B1.2(a). The government cited the Supreme Court’s 2016 decision, Voisine v. United States. The court refused to increase the sentencing range, sentencing Harper to 46 months. The Sixth Circuit vacated, acknowledging that, post-Voisine, offenses that require only recklessness can be crimes of violence under U.S.S.G. 4B1.2(a) and that, under its precedent, violation of Tenn. Code 39-13-102(a)(1)(B) is a crime of violence for purposes of 4B1.2(a). The court then explained the error in its own precedent: Voisine dealt with only “the use . . . of physical force” while section 4B1.2 requires “requires not merely a volitional application of force, but a volitional application “against the person of another.” An actor who is only reckless as to whether his force injures another does not commit a “crime of violence” as defined by 4B1.2; “a desire to simplify our own application of the law is hardly good enough reason to double a man’s Guidelines range.” View "United States v. Harper" on Justia Law

Posted in: Criminal Law

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Defendant pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). At the time of sentencing, Defendant had a pending incest charge in Tennessee relating to inappropriate sexual contact with his minor half-sister. After his federal sentencing, Defendant was convicted on the incest charge. The Tennessee Court of Criminal Appeals reversed the conviction for a Miranda violation and remanded. While Defendant’s new state case was pending, the Probation Office sought modifications to Defendant’s special conditions of supervised release: that Defendant have no contact with his sex offense victim(s) and submit to a psychosexual assessment at his own expense. Defendant pleaded guilty in state court to the reduced charge of aggravated assault. The federal court held a hearing and considered multiple reports relating to his state conviction that described numerous incidents of inappropriate sexual conduct between Defendant and his half-sister, only some of which formed the basis for his state court convictions. Defendant argued that a psychosexual evaluation was intrusive, unrelated to his federal offense, and not the “least restrictive means” to achieve the sentencing purposes of 18 U.S.C. 3553(a). The Sixth Circuit affirmed imposition of the conditions, agreeing that Defendant’s “history and characteristics” justified a psychosexual evaluation. The government conceded that it would not conduct a penile plethysmography test without seeking an additional order. View "United States v. Childress" on Justia Law

Posted in: Criminal Law

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Perreault was alone with his four-month-old daughter when he called 911 to report that Jenna had been injured. Police and paramedics arrived and found that Jenna had suffered a blunt-force trauma to the head. She died from her injuries. Perreault was indicted for first-degree felony murder and felony child abuse. He claimed that he had dropped Jenna, had fallen on top of her, and that she may have hit her head on an object as they fell. The state produced the testimony of the emergency room doctor that Jenna’s injuries could have been caused only by a narrow range of high-impact events, such as a high-speed car accident, a fall from several stories, or “a baseball bat to the head.” Convicted, Perreault was sentenced to life in prison. The Michigan Court of Appeals affirmed. He filed an unsuccessful state post-conviction petition, arguing ineffective assistance. The Sixth Circuit affirmed a denial of federal habeas relief. The state court did not unreasonably apply clearly established Supreme Court precedent in rejecting claims that Perreault’s statement during his interrogation, “let’s call the lawyer then ‘cause I gave what I could,” constituted an unambiguous invocation of the right to counsel that required the police to stop questioning him and that Perreault’s trial counsel was ineffective because he failed to challenge the state expert’s testimony about the cause of Jenna’s injuries. View "Perreault v. Smith" on Justia Law

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Rucker finished an approximately 15-year term of imprisonment and began a five-year term of supervised release. Rucker violated the terms of his supervised release on four occasions when he tested positive for methamphetamine, which required the court to revoke Rucker’s supervised release and to sentence him to a term of imprisonment not to exceed five years, 18 U.S.C. 3583. Before determining the length of Rucker’s new term of imprisonment, the district court permitted him to enter an inpatient addiction treatment program. Presumably if Rucker had successfully completed the program the court would have imposed a short sentence. About a month after Rucker entered the program, he was ejected. The district court held a revocation hearing. Rucker’s Guidelines range was 21-27 months’ imprisonment. The court imposed a sentence of 24 months, stating that Rucker could qualify for the Bureau of Prisons’ residential drug-abuse program only if his sentence was at least 22 months in length. The Sixth Circuit vacated. A sentence is substantively unreasonable if the district court bases it on an impermissible factor. The Supreme Court has held that “[s]ection 3582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.” View "United States v. Rucker" on Justia Law

Posted in: Criminal Law